Carlin v. Wolff

IN DIVISION TWO. SHEEWOOD, J. Injunction to restrain defendants, and chiefly defendant Hermann, from building his fence and thereby obstructing a certain alley in the immediate rear of plaintiff’s premises, situate in that certain and uncertain locality known and unknown as the “Lower Jefferson Addition” to the Oity of Jefferson. In addition to injunctive relief the petition prays for an assessment of damages as compensation for obstructing the alley aforesaid, which it is charged denied plaintiff ingress to, and egress from, the rear end of his lot. The answer of Hermann denies having ever obstructed the alley with his fence, 'but states that “the matters complained of and which plaintiff now seeks to enjoin long since happened and were completed and that this court can, not restrain him from doing what has already been done.” There was no reply filed. The answer of the other dedefendants was in effect -a general denial and a disclaimer. Hpon hearing 'had, the court found the issues for defendants, and gave judgment accordingly. 1. The evidence shows that defendant Fred Wolff and Waldemar Wolff, Hermann’s sons, were prosecuted for obstructing the litigated alley and on trial, which occurred on November 26, 1895, they went acquit of the charge, and that two days thereafter, to wit, November the 28th, the fence ■was finished. [543] Now the summons issued and was served in this cause, on the same day the petition was filed, to wit, November 30, 1895, which was two days after the fence was completed. More than that, the answer alleging the completion of the fence went undenied, and so must be taken as true, and it is wholly immaterial whether the fence in question was completed before or after suit brought, since an injunction, if granted, could not have any retroactive effect on work being done and incomplete when suit brought, but complete when answer filed. It is familiar and well-settled law that a court of equity will not attempt to restrain the doing of any work which has already been accomplished, and for obvious reasons. [10 Am. & Eng. Ency. of Law (1 Ed.), p. 183, and cases cited; 1 High on Inj. (3 Ed.), sec. 23, and cases cited; among them, Owen v. Ford, 49 Mo. 436.] This feature is alone decisive of the affirmance of the judgment rendered. 2. It is asserted by plaintiff’s counsel that no objection was made to the plat when offered in evidence. This assertion is erroneous and is contradicted by the bill of exceptions brought to this court at the instance and on the motion of plaintiff’s counsel. Which bill of exceptions, on p. 41, thereof, recites: “Mr. Silver: I now offer a certified copy, or rather the original plat book. I offer the original plat of Lower Jefferson addition, I mean the record of the plat of Lower Jefferson addition as contained in the Cole county plat book, on page 16. “Mr. Pope: I object to that because it is not executed and acknowledged as required by the law for the laying off of towns and additions of towns. It" does not purport to have been acknowledged, nor is there any thing about the record to show upon wha't piece of land it is situated, or where it begins, or where it ends, or any matter by which it could be identified.” [544] Such misstatements by counsel, of the record, should not occur.' But the plat is not incorporated in the bill of exceptions. Under the provisions of section 2304, Revised Statutes 18S9, the only things that need not be incorporated in the bill of exceptions are the motions for new trial, in arrest and the instructions, and the bill of exceptions in such case must contain a direction to the clerk to copy the same., and the same must be so copied. Here the bill of exceptions recites: “Said plat offered in evidence is in words and figures as follows, as appears from same attached to this bill of exceptions, and marked exhibit A.” Such a reference does not in strictness, incorporate the evidence in the cause, nor any portion thereof 'thus referred to, as in this .regard the old rule respecting the necessity of the evidence being incorporated in the bill of exceptions still prevails unaffected by the emendations made by the act of 1885 (Laws 1885, 219) in section 3776 Revised Statutes 1879, now section 2304 aforesaid (State v. Griffin, 98 Mo. 672, and other cases); but the strict letter of the statute has been so far relaxed as to make valid such a reference ’as above to documentary evidence. [Tipton v. Renner, 105 Mo. 1]. But taking the bill of exceptions as. all right and regular in the respect mentioned, still this avails plaintiff nothing, and for these reasons: The so-called plat does not comply with the law in any particular, to wit: ■ It is not acknowledged by any one, nor does it appear on what piece of land it is supposedly situate, to wit, as to section, township and range, nor does it describe the ground reserved for streets and alleys by boundaries, course and extent, as required by sections 7309 and 7312, Revised Statutes 1889. Moreover the testimony of those who have attempted to survey the locus in quo is vexatiously indefinite and un [545] satisfactory. Of two- surveyors who attempted to' survey the ground m dispute, one made it out that the alley was almost entirely obstructed by the fence; the other that it was not obstructed at 'all. No wonder that the lower court, confronted with such contradictions, refused to enjoin defendants, because a court of equity does not grant injunctive relief in the circumstances related, except in a very plain case. [Elliott on Roads and Streets, 496; 1 High on Inj. (3 Ed.), secs. 886, 887; 2 Sto. Eq. Jur. (13 Ed.), pp. 227, 228.] Eor these reasons wfe- affirm the judgment. All concur. IN BANC. PER CURIAM. This cause having been reheard by the Oourt in Banc, the opinion of Sherwood, J., in Division. No. 2, is adopted as the opinion of the Oourt in Banc, and judgment will he entered accordingly. Burgess, Robinson, Brace, Marshall and Valliant, JJ., concurring therein in íoto-, Qanlt, O. J., concurring on the ground that the proof of the location of the alley was too indefinite to justify a finding for plaintiff.